03.Who can contest my will?
Even if you disinherit immediate family members or dependants, they may still be able to contest your will. CHOICE spoke with Gerard Malouf Partners, which has dealt with a case of three adult children of a farmer who left all his assets – total value $525,000, including the family home – to two charities. Subsequently, his children contested the will and eventually achieved a settlement of $300,000.
Your spouse, children, de facto partner, any dependants or former spouse can usually contest your will. They would normally need to convince the court that you have failed to make adequate provisions for their maintenance, education or advancement in life.
But there is no moral duty to bequest money to all your usual heirs. In a recent case, a father distributed his assets equally between his children except his eldest son, who was left out altogether. The eldest son contested the will, claiming it was his father’s moral duty to provide for him. This claim was rejected by the High Court, which did not see “moral duty” as a defining element of the relevant legislation.
What happens if you don’t make a will?
If you die without a will, your assets are divided according to legislation that differs between states. In SA, for example, your spouse would receive your personal assets, the first $100,000 of your estate and half of the remainder, with the rest divided among your children in equal shares. In NSW, however, your spouse is entitled to your whole estate.
State legislation also differs in the case of de facto spouses. They are usually only accepted as your spouse if you have lived together for two or more years.
A will is only part of a comprehensive estate plan. Estate planning means passing on all your assets to your dependants in the most tax-effective and financially beneficial way. It considers assets bequeathed in your will as well as beyond its scope, such as superannuation. It also considers other important issues, such as appointing a guardian or establishing a trust to take care of the future needs of any dependent children, should you and your partner both die unexpectedly.
Case study : Will 'null and void'
CHOICE staff member Joe Sydney was the executor of his father’s estate. Joe’s father received legal advice when preparing the will, but handled signing and storage himself. Joe discovered the will was incorrectly signed, as his father had come to the first witness with the will already signed and afterwards went to the second witness. Joe’s solicitor told him a court may consider the will “null and void”, as it needed to be signed in the presence of the two witnesses at the same time.
The main beneficiaries of the will were Joe, his stepmother, sister and his father’s silblings. Joe’s mother, his father’s first wife, was not included. Before he appealed to the court to grant probate, Joe got written statements from all beneficiaries, as well as his mother, promising they wouldn’t contest the will.